Time for states to REIN in unelected agencies
Unelected bureaucrats increasingly have been granted the power of both the legislature and the governor, creating and enforcing laws without oversight or constitutional limits. It is time for states to rein in government agencies and hand the keys to power back to elected representatives.
Think about how a law gets passed. A bill must be approved by a majority in two legislative chambers (or one, in Nebraska) and then signed by the governor. At any point along the way, committee chairs, legislative leadership, or even the governor can kill the bill. Making laws is supposed to be difficult. Our constitutional system was designed this way to protect our freedoms. Laws have the power to take away property or even liberty, so they must be thoroughly debated and scrutinized by our elected representatives.
However, when legislatures pass laws, it’s often impractical to include every single detail necessary for making the law workable. That’s where agencies come in. They are tasked with filling in the gaps by promulgating regulations. These regulations, intended to add necessary details, have the same force and effect as the law itself.
But here’s where things go wrong. Over time, the combination of vague laws enabling agencies to make regulations and courts deferring to agencies’ interpretations has led to a troubling shift. Agencies are no longer just filling in the details—they are creating policies and effectively making laws. Unelected agency employees now have the power to make decisions that can take away your property or your freedom, all without any vote from your elected representatives.
At the federal level, the Supreme Court has begun to push back against this overreach. In the recent Loper Bright decision, the Court overturned the longstanding practice of agency deference, and it has also overturned regulations that make major policy changes that are better left to Congress. These decisions are important steps to curb the unchecked power of the administrative state.
Yet, at the state level, the problem persists—often with even fewer checks and balances. In many states, there is no meaningful oversight of regulations. A midlevel bureaucrat, whom no one elected, can alter state policy with the stroke of a pen—a feat that would be impossible for an elected legislator to achieve so easily.
Thankfully, state legislatures are starting to take action. They are reclaiming their constitutional authority by adopting REINS (Regulations from the Executive In Need of Scrutiny) Acts. The REINS Act is a simple, yet powerful reform: It requires that any regulation with a significant economic impact—above a threshold set by the legislature—must be approved by the legislature. Florida and Wisconsin have had REINS Acts for years, and in 2024, Indiana and Kansas joined them by passing their own REINS Act reforms.
The REINS Act strikes the perfect balance between flexibility and accountability. It allows agencies to continue making regulations that fill in the necessary details, ensuring that laws are practical and enforceable. But it also ensures that any regulation with significant economic consequences is approved by the people’s representatives—those who were elected to make policy decisions.
For legislators to decide whether to support regulations that trigger the REINS Act, they need accurate and unbiased information. Unfortunately, in many states, the agency proposing a regulation is incentivized to provide one-sided information that supports its position. This is why independent analysis is crucial—at the very least, someone needs to verify the agency’s claims. States should include this independent analysis in their REINS Acts.
To fix this, legislatures should establish their own economic analysis units. These units would independently review agency analyses to ensure the REINS Act is applied properly. First, they would determine whether the economic impact is significant enough to trigger legislative review. Second, they would provide lawmakers with the information necessary to make informed decisions when a regulation requires their approval.
The rise of the administrative state is not an insurmountable problem—but it does require action. Legislatures must take back their policymaking power from unelected bureaucrats if they are to fulfill their constitutional role. The REINS Act and independent economic analysis are practical, common-sense steps to ensure that laws, and subsequent regulations, are truly representative of the people’s will. Laws should be made by elected representatives, not by midlevel agency staff—and state legislatures are finally starting to take that principle seriously.
It’s time to reclaim the power of the people’s voice in policymaking. Let’s ensure that our laws are created by those we elect, not by faceless bureaucrats behind closed doors.
